A. Abboy Chetty and Others vs The Commissioner of Income Tax

Patanjali Sastri, J.—This is a petition u/s 66(2) of the Indian Income Tax Act praying that this Court should direct the Income Tax Appellate

Tribunal to refer the following questions to this Court for decision:

(1) Whire it was found that for the assessment year 1942-43 the business of A. Gopalaswam Chetty and Co., was the sole business of A.

Gopalaswami Chetty, had he Income Tax Officer jurisdiction to give an inconsistent and different finding on the same materials and evidence that

for the succeeding assessment year 1943-44 the same business belonged to a firm of A. Gopalaswami Chetti and A. Ramanujulu Chetti.

(2) Whether the finding given by the Income Tax Officer regarding the ownership of the business of A. Gopalaswami Chetty and Co., in the

assessment year 1942-43 was not final and conclusive so as to preclude the Income Tax Officer from coming to a different finding in the

succeeding assessment year in the absence of fresh facts or materials, the previous finding estopping the Income Tax Officer on grounds of natural

justice and equity embodied in the principles of res judicata.

The Tribunal refused to refer these questions on the ground that the only question that was raised and argued before it was the question of fact,

namely, whether the business of A. Gopalaswami Chetty and Co., also belonged to the appellant firm or was it an independent concern belonging

to one of the partners Gopalaswami Chetti, and that the questions now sought to be raised before the High Court was not raised before it at the

hearing of the appeal. The Tribunal therefore took the view that these questions did not arise from its order and accordingly rejected the

application for reference made u/s 66(1) of the Act. Thereupon the appellant preferred the present application u/s 66(2) asking this Court to direct

the Appellate Tribunal to state a case and to refer the questions aforesaid

Section 66(1) of the Act provides:

Within sixty days of the date upon which he is served with notice of an order under Sub-section (4) of Section 33, the assessee or the

Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred

rupees, require the Appellate Tribunal, to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall

within 90 days of the receipt of such application draw up a statement of the case and refer it to the High Court.

It will be seen that the question of law which the Appellate Tribunal can be required to refer to the High Court under this provision is a "" question

of law arising out of such order,"" i.e., the order of the Appellate Tribunal passed on appeal. Mr. Radhakrishnayya for the petitioner contends that a

question, though not raised before the Appellate Tribunal, can well be said to "" arise out of its order,"" if, on the facts of the case appearing from the

order, the question fairly arises. I am unable to agree with that view. I am of opinion that a question of law can be said to arise out of an order of

the Appellate Tribunal only if such order discloses that the question was raised before the Tribunal. This accords -with the view taken by the

Lahore High Court of the provisions of Section 66(2) which in this respect used similar language before the section was amended by the amending

Act of 1939. See (1935) 3 ITR 112 (Lahore) .

Mr. Radhakrishnayya referred us to Vadilal Lallubhai v. Commissioner of Income Tax, Bombay I.L.R.(1934) 59 Bom. 405 but I do not think

that that decision has any application here. The question considered by the learned Judges in that case relates to the formulation of questions of law

for purposes of reference to the High Court u/s 66 of the Act. It was held that under that section the assessee is not required to formulate precise

questions of law, but has merely to require the Commissioner to refer to the High Court any question of law arising out of an order or a decision.

Reference was also made to the Privy Council decision in M.E. Moola Sons, Ltd. v. Burjorjee (1932) 63 M.L.J. 131 : L.R. 59 IndAp 161 : ILR

10 Rang. 242 (P.C.) where their Lordships allowed a question of law to be raised before them for the first time. The case furnishes no useful

analogy as the scope of the remedy u/s 66 of the Indian Income Tax Act has to be determined with reference to the language of the statute.

I am of opinion that the Appellate Tribunal was right in refusing to refer the questions raised to this Court and this petition must be dismissed

with costs, Rs. 150.

Frederick William Gentle, C.J.

I agree and have nothing to add.